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Senators say the federal appeals court in D.C. has too many judges | It has a “special responsibility” to oversee the government’s conduct

Paul M. Barrett

In April 2005, Chief Justice John Roberts Jr. delivered a lecture at the University of Virginia School of Law entitled, “What Makes the D.C. Circuit Different?” Roberts, an alumnus of the federal appeals court in Washington, explained the D.C. Circuit’s “unique character” as a judicial body “with special responsibility to review legal challenges to the conduct of the national government.” He noted the court hears a disproportionate number of appeals from the CFTC, EPA, FTC, SEC, and other “alphabet soup” regulatory agencies.

Observing judicial etiquette, Roberts avoided discussion of contemporary politics. As a result, he didn’t address the black-robed elephant in the room: The D.C. Circuit’s role as a stepping-stone to the Supreme Court. Presidents of both parties frequently look down Constitution Avenue for nominees to the nation’s top bench. Among Roberts’s eight current fellow Supremes, three — Ruth Bader Ginsburg, Antonin Scalia, and Clarence Thomas — also served on the D.C. Circuit. For that reason, nominees seeking confirmation to the D.C. Circuit are often subjected to more intense partisan scrutiny by the Senate than those the president chooses for the other 11 federal appellate courts around the country.

At present, that scrutiny has morphed into acute apprehension. The D.C. Circuit’s eight active judges are split 4-4 between Democratic and Republican appointees, with three vacancies. (There are also five semiretired senior judges who occasionally decide cases.) On June 4, a combative-sounding President Obama named his choices for all three openings. He preemptively chastised Senate Republicans for blocking some of his previous choices for the court. “This is not about principled opposition,” he said. “It’s about partisan obstruction.”

When Republicans returned fire, they augmented the usual finger-pointing about politicizing the judiciary with a seemingly higher-minded argument about manpower: GOP Senators say they oppose Obama’s nominees because they aren’t needed. Senator Charles Grassley of Iowa is pushing a bill that would eliminate the D.C. Circuit’s three vacancies on the theory that the court is underworked. He proposes to do away with one judgeship and transfer the other two to circuits with heavier caseloads. “It’s a common-sense bill that moves judges to where they are needed,” he said in a prepared statement.

By certain statistical measures, the senator has a point. The D.C. Circuit ranks next-to-last in terms of unresolved cases, meaning that in comparative terms, it doesn’t have much trouble getting its work done and out the door. According to the most recent 12-month figures from 2012, the D.C. Circuit had 120 pending appeals per authorized judgeship; only the Tenth Circuit, based in Denver, had fewer, with 115. When evaluated by the number of appeals filed and those resolved, the D.C. Circuit came in last place, with 108 cases per authorized judgeship in each category.

The Iowa lawmaker and his Republican allies are not the first to attempt to use judicial head counts to sculpt the federal courts to their liking. President Franklin Roosevelt’s ultimately thwarted 1937 “court packing” plan would have expanded the Supreme Court by six members — a blatant attempt to counter conservative jurists who were blocking his New Deal programs. (During his 12 years in office, Roosevelt appointed eight justices in the conventional manner.)

Grassley’s bid to unpack the D.C. Circuit obscures another distinctive characteristic of that bench, a point Democrats doubtless will emphasize in the coming debate over his bill and Obama’s nominees: The many regulatory agency appeals that Chief Justice Roberts referred to are among the most complicated cases in the land. They pertain to the meaning and application of hellishly detailed rules governing financial markets, industrial pollution, electricity distribution, labor relations, and product safety. Members of the D.C. Circuit may have to take more time to untangle the matters that come before them. Raw case counts, without reference to case content, don’t tell the whole story.

Just ask Roberts. In April the Judicial Conference of the United States, an administrative body headed by the Chief Justice, himself a Republican appointee, told Congress that to juggle its dense docket, the D.C. Circuit needs all 11 judges.

The bottom line D.C. Circuit nominees often go to the Supreme Court — four current justices did — so they get extra Senate scrutiny.

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